265 F. 916 | 4th Cir. | 1920
On April 29, 1918, the defendant, M. Sharfsin, was adjudicated an involuntary bankrupt. On June 3, 1919, he was convicted on an indictment containing one count, charging that he knowingly and fraudulently concealed from Clayton S. Warner, his trustee, $1,500, a part of his bankrupt estate. A motion for a new trial on after-discovered evidence was refused.
Error is assigned in the refusal of the District Court to direct a verdict on the ground that the testimony failed to sustain the charge. There is no dispute as to the material facts. The petition in involuntary bankruptcy was filed on January 14, 1918. On January 25, 1918, ■on a return to a rule to show cause, the District Court appointed Warner receiver, pending the consideration of the petition, and the receiver immediately took charge of all the visible property. On January 9, 1918, before the petition was filed, the defendant purchased for cash from the Citizens’ Bank of Allenda2e that bank’s check on a New York bank for $1,500. On March 5, 1918, after the petition was filed, the defendant returned the check to the bank and received from it $1,500 in cash. C. H. Schneider & Bro. having set up a claim to certain chattel mortgages held by the receiver, the court appointed a referee to take testimony and report on the validity of the claim. On
The court rejected the offer of composition on the ground that it appeared prima facie that the defendant improperly failed to “turn over his assets” and “had sought covertly to secure to himself part of the assets of his bankruptcy.” The trustee was ordered to take proper steps to recover the $1,500 referred to in the testimony, and “to lay all the papers and testimony in this matter before the United States district attorney for this district for his investigation and action as the case may in his opinion call for action.” Immediately upon the filing of this order, the defendant directed the referee to turn over the $1,-500 to the trustee for distribution among creditors, thus confessing that the money was furnished by him and was part of his estate.
“If any referee or trustee shall fail to give bond, as herein provided and within the'lime limited, he shall be deemed to have declined his appointment, and such failure shall create a vacancy in his office.”
Although the trustee did not give bond, and although the statute provides that the office shall be vacant upon his failure to do so within 10 days, he nevertheless remained the de facto trustee, charged with all the official duties of the position, and entitled to enforce all the rights of a trustee against the defendant. These rights and duties could only be ended by the judicial declaration of a vacancy. The principle has been too often decided to require discussion. Ex parte Ward, 173 U. S. 452, 19 Sup. Ct. 459, 43 L. Ed. 765; Wright & Wade v. United States, 158 U. S. 232, 15 Sup. Ct. 819, 39 L. Ed. 963; Norton v. Shelby County, 118 U. S. 425, 445, 446, 6 Sup. Ct. 1121, 30 L. Ed. 178; In re Manning, 139 U. S. 504, 11 Sup. Ct. 624, 35 L. Ed. 264; Ball v. United States, 140 U. S. 118, 129, 11 Sup. Ct. 761, 35 L. Ed. 377; Reichert v. Missouri, etc., Coal Co., 231 Ill. 238, 83 N. E. 166, 121 Am. St. Rep. 307; Oliver v. Mayor, etc., 63 N. J. Law, 634, 44 Atl. 709, 48 L. R. A. 412, 76 Am. St. Rep. 228; State v. Coleman, 54 S. C. 282, 32 S. E. 406.
There is nothing in the point that on cross-examination before the referee the defendant disclosed his transactions, concerning the $1,-500, and that this disclosure was made known to Warner before he was appointed trustee. It is true the defendant did testify that he had obtained the money from the bank before he was adjudicated bankrupt, but he also testified that he had parted with its possession for legitimate purposes before the adjudication. The concealment of the $1,500 began before the adjudication in bankruptcy, and was continued up to the time that defendant directed it to be paid to the trustee for distribution among creditors.
The other points are too unsubstantial to require particular notice.
Affirmed.